Can a same sex partner donate egg or sperm to their partner and retain parental rights and not be viewed as merely a donor?

In late 2013, the Florida Supreme Court held that the Florida egg, sperm and embryo donation statute (Florida Statute 742.14) was unconstitutional as it only allowed legally married heterosexual couples to retain parental rights to child born resulting from donated genetic material from one party to the other. The case involved a lesbian couple where one woman donated her egg (“biological mother”) to her partner (“birth mother”) to carry the child. Years after the birth of the child, the birth mother refused to give the biological mother parental rights. Under Florida’s donation statute, since they were not a legally married couple, when the biological mother donated her egg, she was viewed as an egg donor and did not retain any rights to the resulting child. The case, which was a matter of first impression, was argued to the Florida Supreme Court who determined that the donor statute was unconstitutional because it denied the biological mother the right to raise her child. The Florida Supreme Court held, “We conclude that the state would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent.” This is great news for same-sex couples wishing to utilize assisted reproductive technology to start families in Florida as they are no longer deemed just donors of genetic material if their intent is to retain parental rights to the resulting child. Regardless of the statute, an agreement setting forth the parties intentions is strongly recommended.

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